Opinion
E051800
08-30-2011
In re ROCHELLE SCHULZ, on Habeas Corpus.
Kamala D. Harris, Attorney General, Julie L. Garland, Phillip Lindsay, and Gregory J. Marcot, Deputy Attorneys General, for Appellant the People. Heidi L. Rummel and Michael J. Brennan for Petitioner Rochelle Schulz.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIC10001053)
OPINION
APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge. Affirmed.
Kamala D. Harris, Attorney General, Julie L. Garland, Phillip Lindsay, and Gregory J. Marcot, Deputy Attorneys General, for Appellant the People.
Heidi L. Rummel and Michael J. Brennan for Petitioner Rochelle Schulz.
I
INTRODUCTION
September 1985, petitioner Rochelle Schulz (Schulz) pled guilty to and was convicted of second degree murder, committed with a deadly weapon (the commitment crime). Schulz was sentenced to 16 years to life in prison (Pen. Code, §§ 187, 12022, subd. (b)). In April 2009, the Board of Parole Hearings (Board) granted Schulz parole. Governor Arnold Schwarzenegger (Governor) reversed the Board's decision. Schulz filed a petition for a writ of habeas corpus. The trial court granted the petition and ordered the Board's decision granting parole reinstated. Appellant Guillermo G. Garcia, the warden of the prison where Schulz is incarcerated (Warden), appeals the trial court's August 23, 2010, order granting Schulz's writ petition.
Unless otherwise noted, all statutory references are to the Penal Code.
The Warden contends there was sufficient evidence supporting the Governor's decision denying Schulz parole, and therefore this court must reverse the trial court's ruling granting Schulz's petition for writ of habeas corpus. The Warden also contends that the remedy provided by the trial court, of reinstating the Board's decision, violated the Governor's constitutional and statutory right to review the Board's parole decisions. The Warden argues that the trial court's order reinstating the Board's decision was an improper remedy and the trial court should have remanded the matter to the Governor for reconsideration.
We conclude the superior court was correct in granting Schulz's petition for habeas relief since there was insufficient evidence supporting the Governor's finding that Schulz currently poses an unreasonable risk of danger to society. We further conclude the trial court appropriately ordered reinstated the Board's decision granting Schulz parole.
II
FACTUAL AND PROCEDURAL BACKGROUND
We take the facts of the underlying commitment offense primarily from the October 25, 1985, probation report prepared in connection with Schulz's 1985 conviction, and from the March 2008 psychological evaluation report.
Schulz's statement of facts is essentially useless in that it fails to provide proper citations to the clerk's transcript. Rather, Schulz's attorney provides writ petition exhibit letters and page numbers. To make matters worse, the exhibits are not marked with letters, making it difficult to locate the particular exhibit cited. As a consequence, this court must search through the record to locate the cited exhibit, rather than expeditiously referring to a specific page in the clerk's transcript. Apparently, Schultz's attorney merely copied the statement of case and statement of facts contained in Schultz's writ petition, without bothering to provide any citations to the clerk's transcript on appeal. Schultz's attorney has failed to follow the California Rules of Court (see Cal. Rules of Court, rules 8.204(a)(1)C) and 8.360(a)) in properly citing to the record on appeal.
A. Schultz's Personal History
Schulz was born in November 1960. Her mother was a drug addict, abused alcohol, and was a prostitute. Schulz's maternal grandparents (grandparents) raised Schulz from the age of two and adopted her when she was six years old. Schulz's mother died from a drug overdose when Schulz was 16 years old. Schulz never knew her father. Schulz claimed her grandparents physically and emotionally abused her as a child. When Schulz was seven years old, her cousin raped her. Schulz was raped three more times as a teenager.
However, in a 1985 psychological examination, Schulz stated that a 13-year-old cousin attempted to sexually molest her, "but this did not come about."
Schulz began drinking alcohol and engaging in consensual sex with multiple male partners at the age of 16. She was considered a runaway and out of control, and was made a ward of the court. When she was 17 years old, her drinking substantially increased with the devastating death of her older brother, with whom she shared the closest relationship. Schulz began using methamphetamine a few times a month when she was 17 years old, dropped out of high school, moved out of her grandparents' home, and moved in with a girlfriend.
After moving out of her grandparents' home, Schulz held various jobs, including working at a dry cleaner, restaurant, fast food business, and telephone sales company. Schulz never held a job for more than eight months and continually had financial difficulties despite attempting to find employment.
Schulz befriended codefendant Max Fields (Fields) about three years before the commitment crime. She was not initially romantically interested in Fields, who is 20 years her senior. Three and a half months before the crime, Schulz lost her job and residence because her employer filed for bankruptcy and terminated the company. Fields offered Schulz a room in his residence. After she moved in with Fields, she became sexually involved with Fields several months before the crime.
Fields, who was bisexual and an ex-felon, told Schulz he wanted a relationship with her but also wanted to go out with other women every week and have sex with them. Fields encouraged Schulz to do the same with others. Schulz later believed she and Fields had decided to have an exclusive relationship, but Fields continued having sex with men and other women. Nevertheless, Schulz became convinced Fields was the right person for her. Before her relationship with Fields, Schulz had never had any long-term relationships. Schulz never married and had no children.
At the time of the commitment crime, Schulz had no job, was financially destitute, had no means of supporting herself, was abusing alcohol and drugs, and was acquiescing to Fields's demands because she believed it was her "last chance for happiness, [her] last chance for love." Schulz would get drunk a few times a week, and would drink for three or four days straight. She drank a couple of six-packs of beer a day.
B. Commitment Offense
On April 12, 1985, Schulz and Fields spent the day and evening drinking alcohol at a bar in Cathedral City. Fields's ex-girlfriend, Mary Dawn Mortz (Mortz), who was 26 years old, joined Schulz and Fields at the bar. The three eventually left the bar in two separate cars. Fields and Mortz stopped at Mortz's house around 2:00 a.m. Fields told Mortz's roommates, Raul Gray and Ron Mayo, that he and Mortz were going to Edom Hill, a dumpsite, to have sex while Fields's girlfriend (Schulz) watched. Schulz claims she did not hear this conversation and was not aware of Fields's intentions. Fields and Mortz took some blankets, pillows, and two six-packs of beer, and left.
Fields, Mortz, and Schulz drove to Edom Hill in Mortz's car. While Schulz remained in Mortz's car drinking a beer, Fields and Mortz got out of the car and walked to the front of the car. By the time Schulz got out of the car and walked in their direction, Fields and Mortz were engaging in oral sex. The two were lying on their sides, facing each other, with Mortz's back to Schulz. Fields was naked. Schulz grabbed a knife from Fields's pants, which were lying on the ground, and stabbed Mortz in the back several times. Schulz then dropped the knife. Fields picked up the knife and lethally stabbed Mortz in the neck, admittedly with the intent to kill her. He wanted to make sure she was dead. Fields and Schulz left Mortz lying on a blanket and went home.
Schulz was arrested on April 16, 1985, pled guilty, and was convicted of second degree murder, committed with a deadly weapon (§§ 187, 12022, subd. (b)). Fields also pled guilty and was convicted of the same crime and weapon enhancement. Schulz and Fields were both sentenced to 16 years to life in prison.
C. Parole Board Suitability Hearing
On April 24, 2009, Schulz appeared before the Board for a parole suitability hearing. Her minimum parole eligibility date was December 18, 1994. Schulz's last parole hearing was in April 2008. The Board noted Schulz did not have any prior arrests or convictions. She also did not have a juvenile record, other than being a runaway. Later in the hearing, Schulz acknowledged she had been arrested when she was around 19 years old for drunk driving.
Schulz's prison file reflected that, while in prison for the commitment crime, she participated in numerous programs, including the Genesis Project, which involved multicultural self-expression through the arts, Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) since 1987, the Patch Inmate Ministry Team, the Prison Puppy Program, and the Christian Life Program Center. Schulz also completed the Kairos short course on Christian living, received a diploma from Voice of Prophecy Bible School, and took training courses in construction, nutrition and fitness, carpentry, data processing, painting, and janitorial maintenance. Her job skills included carpentry, construction, driving an excavator, compactor, and forklift, blueprint reading, plumbing, and upholstery.
Schulz told the Board her parole plans included initially participating in the transitional Crossroads residential program for previously incarcerated women. The average stay at Crossroads was six months, but she could stay longer if necessary. After leaving Crossroads, Schulz intended to live with her brother, Stanley Schulz, who lived alone in Palm Desert and had retired. Stanley was Schulz's grandparents' adopted son and was 20 years older than Schulz. He had been Schulz's primary source of support during her incarceration, through monthly telephone calls, letters, and visits five to six times a year. In addition, Schulz had two job offers, one working 35 to 40 hours a week for Dynamic Building Maintenance doing office work, and the other working at Harvest Health Foods 28 hours a week as a stock clerk.
When the Board asked Schulz to discuss the commitment crime, she stated that it "was a horrific thing that should not have happened. There's no words that I can tell you [] how sorry I am that it happened. That she died in a way that she did. That the people here are suffering because of her loss."
Schulz further explained that after Fields, Mortz and Schulz arrived at Edom Hill, Schulz remained in the car for a couple of minutes while drinking a beer and did not see anything. Fields and Mortz had already left the car by the time Schulz got out. Schulz did not recall hearing Fields or Mortz saying anything about having sex. Schulz acknowledged that, when the police interviewed her and Fields, Schulz told the investigator that Mortz and Fields had said they were going to Edom Hill to have sex. Schulz denied she actually heard Mortz and Fields say this. Schulz explained that during their joint police interview, Fields spoke first and Schulz agreed with what he said about her conduct. Schulz did not agree with Fields's statements regarding the reasons for her conduct. Schulz did not remember saying she told Mortz that, if Mortz took her clothes off, Schulz would kill her. Schulz acknowledged Fields told the police during the interview that Fields, Mortz, and Schulz had been drinking all day and, as a "dare," decided to go to Edom Hill, where Mortz and Fields were going to have sex while Schulz watched. Schulz stated that, although it was true Fields said this, his statements were untrue. Fields also said Schulz told Mortz that Mortz did not have "the balls" to take her clothes off. Schulz denied saying this to Mortz but did not tell the detective Fields was lying.
Schulz told the Board she went along with what Fields said at the police interview because she was scared, confused, and in love with Fields. Schulz was trying to help Fields get less time in prison. Schulz admitted that she was not totally honest during the initial police interview: "A lot of what I said was either what [Fields] said to say or what I felt myself he might want me to say." At the time, Schulz believed Fields loved her and held on to this belief. It was difficult to let it go. This is why she did not correct Fields's false statements made during their police interview. Schulz acknowledged she stabbed Mortz several times in the back but denied going to Edom Hill with the intent to watch Mortz and Fields have sex. Schulz claimed she went there to drink beer. Schulz admitted she was jealous of Mortz.
Schulz conceded she had initially exaggerated her use of alcohol and drugs to explain her criminal acts. It was true that she usually went on three- to four-day drinking binges, consuming a couple of six packs of beer a day. Schulz admitted she drank excessively but denied she used speed every day. She could not afford it. She was using it about two or three times a month, depending on if she was working and had money.
With regard to remorse, Schulz stated: "I know that she would not be dead if it were not for me. Whether it was my wounds were the only ones or not, I'm the one who reacted to a situation. A situation I should have not placed myself in in the first place, and it is totally my fault that she is dead. And that's the point I tried to get across and obviously it hasn't come across that way. Whether he was there or not, I'm the one who stabbed her. It's my fault that she's dead. I reacted, I don't know how else to say it. She's dead because of me, and I'm sorry."
The Board asked Schulz to explain a problem arising from Schulz's participation in the Prison Puppy Program. In response, Schulz said she left the program because she did not like the way a staff member was treating the inmates. Schulz left after the staff member told her to give a command to a dog and the dog did not obey her command right away. Schulz told the staff member she did not like the way she was treated and decided to leave the program. Schulz also did not like the way some of the people were treating the dogs. After the staff member left the program, Schulz began participating in the program again.
D. Board Decision
At the April 2009 parole hearing, the Board concluded Schulz was suitable for parole and would not pose an unreasonable risk of danger to society if released from prison. The Board stated that the commitment crime was particularly troubling in that it was carried out in a heinous, atrocious, and cruel manner. Schulz committed the crime by going into a stabbing rage, followed by Fields cutting Mortz's throat in a dispassionate, calculated, execution-style manner. The Board noted that Schulz had a troubled and difficult childhood and, as a runaway teenager, began abusing drugs and alcohol. While incarcerated, Schulz had only one California Department of Corrections and Rehabilitation (CDC) 115 rules violation report (115 violation) over 24 years in prison. But she also had 53 CDC rule 128A violations (128A violation), with only one since 1994. The Board stated that this showed that Schulz had a difficult time initially adjusting to prison. The Board nevertheless concluded the positive aspects of Schulz's case outweighed the negative factors.
A "115" report documents misconduct believed to be a violation of the law that is not minor in nature, while a "128" report documents incidents of minor misconduct. (Cal. Code Regs., tit. 15, § 3312, subd. (a)(2), (3); In re Gray (2007) 151 Cal.App.4th 379, 389; In re Reed (2009) 171 Cal.App.4th 1071, 1077 & fn. 2.)
The Board took into consideration all of the significant stress in Schulz's life at the time of the crime. The Board stated it had combed through the record and found very little difference between Schulz's statements made initially and her statements made at the parole hearing. Although there were some discrepancies, they were small and insignificant. The Board concluded Schulz has been consistently remorseful. Schulz's conduct and lifestyle at the time of the commitment crime were reprehensible but the crime itself cannot form the basis for retaining her in prison. There must be some additional evidence. The Board searched the record and did not find any evidence of Schulz demonstrating a future risk of violence.
The Board accepted Schultz's statements of remorse, noting that Schulz had been very straightforward during the hearing. The Board found that Schulz was not only remorseful, but insightful as well. With regard to Schulz's institutional behavior, the Board found that she was participating in activities that indicated "an enhanced ability to function within the law on release" by self-improvement through education. This included getting her GED in 1985 and more recently taking several Bible classes. Schulz had also "upgraded vocationally" by obtaining marketable skills in plumbing, upholstery, carpentry, and operating a forklift. The Board added that Schulz had consistently done well in her work assignments over the past decade. In addition, Schulz participated in self-help, health, and therapy programs, including AA, NA, and anger management.
As to Schulz's parole plans, the Board concluded they were very realistic. Schulz planned to enroll in the Crossroads residential reintegration program and then move in with her older brother. Schulz also had two job offers. In addition, Schulz had an inheritance from her grandparents that was available if she needed financial assistance.
The Board noted that the district attorney opposed granting Schulz parole. The Board conditioned Schulz's parole on Schulz (1) submitting to random drug testing, (2) not possessing or consuming alcohol, (3) attending a parole outpatient clinic for evaluation and treatment, if deemed appropriate, and (4) not contacting the victim's family.
E. Most Recent Psychological Evaluation
In reaching its decision granting Schulz parole, the Board took into consideration Schulz's most recent psychological evaluation report from March 2008. The report was prepared by Dr. Donna L. Robinson (Dr. Robinson) based on a two-hour interview of Schulz in February 2008, and on Schulz's file. In the March 2008 report, Dr. Robinson addressed the issue of Schulz's potential for violence upon release from prison. Dr. Robinson noted that Schulz had had only one 115 violation, which was issued in 1986 for "Delaying Institutional Count," and Schulz's last 128A violation was issued in 2004 for "Failure to Report for a Priority Ducat." The majority of Schulz's fifty-four 128A violations were issued between 1986 and 1989 (45 total) for failing to report to her assignment or reporting late. Between 1994 and 2004, she did not receive any 128A violations, suggesting Schulz favorably adjusted to prison.
Dr. Robinson concluded Schulz's current description of the commitment crime was fairly consistent with her previous iterations. When Dr. Robinson asked Schulz to discuss the causative factors of her crime, Schulz said she believed the impact of her childhood was a factor because it contributed to her very poor self-esteem. Her grandmother, who was Schulz's adoptive mother, was abusive, both physically and emotionally, and Schulz's biological mother was a drug addict and alcoholic. Schulz stated she believed her extremely poor self-esteem contributed to her choosing Fields as her partner.
When asked why she stabbed Mortz, rather than Fields, who had betrayed Schulz by having sex with Mortz, Schulz said that Mortz represented Schulz's "pain and hurt." In addition to being angry at the women who had previously abused and abandoned Schulz, Schulz was most angry with herself. She stated she may have seen a part of herself in Mortz because of "how far down I had gone. I went against everything I believed." Schulz said she had dropped her standards to an all-time low, living with a bisexual partner who had sex with other men and women during his relationship with her and encouraged "kinky" practices, such as having her burn him with cigarettes. In addition, Schulz was abusing alcohol and drugs, had no job, had no means of supporting herself, and acquiesced to Fields's demands because she believed it was her last chance for love. When he betrayed her by having sex with Mortz in front of Schulz, Schulz became enraged at Fields, as well as Mortz. By stabbing Mortz, Schulz was punishing Fields by taking Mortz away from him.
With regard to Schulz's insight, Robinson reported that Schulz stated during her interview, "I know that it wasn't my wounds that killed her (victim). But it is my fault that she was killed." Robinson noted that the probation officer's report "corroborated the fact that she did not inflict the fatal wounds. Nonetheless, it was insightful for her to realize that 'her wounds' (both the physical ones she inflicted and the emotional ones she suffered at earlier times) set the crime in motion. She has taken full responsibility for her contribution to the circumstances that resulted in the victim's death."
Dr. Robinson further reported that, "When asked whether Ms. Schulz thought her sentence was fair, she replied, 'Yes. I took something away that I can't give back. You can't put a price on that.' She has accepted the punishment that was pronounced and has attempted to address the causative factors that were operative at the time of the life crime while she has been in custody. She has demonstrated credible sobriety skills for more than 10 years and has worked diligently to improve her self-esteem through self-help groups, spiritual pursuits, and volunteer activities. Overall, it appeared that she has done all that she could within the context of the available resources to come to terms with the causative factors of the life crime."
Dr. Robinson noted that Schulz admitted she had initially exaggerated her use of alcohol and drugs to explain her criminal behavior. She has developed more insight and taken responsibility for her actions, and therefore no longer needed to continue providing misleading information and blaming intoxication alone for her behavior. Dr. Robinson further concluded that, when Schulz was initially incarcerated, she likely had dependent personality disorder. She has not had this disorder since 1989 and has become an assertive woman.
According to Dr. Robinson, Schulz's alcohol dependence was currently in full remission, in a controlled environment. Dr. Robinson believed that Schulz committed the commitment crime while under substantial influence of alcohol and drugs, which likely contributed to her "behavioral disinhibition and resulted in violent behavior. It will be essential for her to remain abstinent from all intoxicating substances upon release to the community, given her history. She appeared to appreciate the gravity of this fact."
Dr. Robinson noticed during Schulz's interview that Schulz displayed some rigidity in her thinking processes and actions. Schulz's typical response to change was resistive and she insisted her way was the right way. "[W]hile she was never overtly disrespectful (thus no 128A's), she was sometimes reluctant to change." However, Dr. Robinson also stated that "It was a positive prognostic indicator that Ms. Schulz could eventually concede the middle ground." Dr. Robinson observed that Schulz was capable of standing firm on her viewpoint when appropriate and this confirmed she no longer displays features of a dependent personality disorder. "[S]he has improved her interpersonal relationships and her communication skills within the institution during her incarceration. This will serve her well in the community."
Dr. Robinson's March 2008 evaluation report was an addendum to Dr. Smith's September 2005 psychological evaluation report. Dr. Robinson noted that Dr. Smith stated in his report that Schulz had no violent, serious disciplinary infraction. Smith concluded Schulz did not present any immediate threat of dangerousness should she be released. Smith assessed Schulz's risk of dangerousness/violent recidivism over the three to five years following release as "Low" in relation to the overall distribution of risk among the population of released female offenders. This conclusion was conditional upon Schulz abstaining completely from alcohol and drugs.
In the March 2008 report, Dr. Robinson assessed Schulz's risk of future violence as "very low." Dr. Robinson explained: "Current reports suggested that Ms. Schulz has matured and improved greatly while in custody. Additionally, she demonstrated better insight into her past patterns of behavior . . . . It is likely that her spiritual pursuits, self-help groups, 12-Step programs, volunteer work, and vocational endeavors have assisted her in integrating pro-social values and more effective interpersonal and social skills."
Dr. Robinson concluded the following circumstances led to Schulz's violent crime: her age of 24 years, along with being in "tumultuous, romantic relationships with men"; not being able to sustain a committed relationship over any length of time; abusing alcohol, beginning when she was 16 years old and drugs when she was 17; early maladjustment as a result of repetitive physical and emotional abuse as a child; routinely being fired from jobs due to chronic lateness; and possessing traits consistent with dependent personality disorder.
According to Dr. Robinson, Schulz displayed none of the predictive factors for recidivism. Schulz had no previous history of violent criminal behavior, had never suffered from a major mental illness or psychopathy, and her alcohol dependence had been in full remission for more than 20 years. Dr. Robinson concluded Schulz "has come to terms with the aspects of her personality style that made her susceptible to unhealthy relationships in the past. She has been able to demonstrate credible sobriety skills and has committed herself to abstinence. She has not incurred serious disciplinary infractions since 1986, which suggested that she has maintained adequate self-control within the institution. She has complied with the recommendations of the [Board] with regard to self-help groups, demonstrating her ability to respond to treatment suggestions."
Dr. Robinson reported that Schulz intended to continue her involvement in 12-step programs and has adequate emotional support in the community. Dr. Robinson noted that, although some level of stress is to be expected as she transitions to the community after a lengthy incarceration, it appeared that Schulz has "adequate coping skills to manage this transition, effectively." Dr. Robinson stated that there would be "stressors endemic to any re-entry process and that potential exposure to drugs and alcohol is always a possibility in the community. Notwithstanding, the current assessment results indicate that Ms. Schulz is at a LOW risk of recidivism and violent reoffense if released to a free community, assuming there was no resumption of the use of alcohol and/or drugs. If she were to return to the use of drugs or alcohol, this estimate of risk would increase and reflect a higher risk of recidivism."
With regard to Schulz's insight, Dr. Robinson found that Schulz "demonstrated significant insight into her past behavior," has taken full responsibility for the commitment crime, and "has worked diligently to address the causative factors that were operative at that time." As to remorse, Schulz "expressed credible regret for her behavior that led to the victim's death." Dr. Robinson concluded: "In sum, the combination of actuarial data, the records, and the clinical interview suggested that Ms. Schulz's overall level of risk for future violence in the community was in the 'LOW' range, with the caveat that she remains abstinent from all alcohol and drugs in the community."
F. The Governor's Decision Denying Parole
Despite Schulz's favorable 2008 psychological evaluation and the Board's finding that Schulz would not pose an unreasonable risk of danger to society, the Governor reversed the Board's decision granting parole. The Governor based his decision on the fact the commitment crime was a senseless, brutal, unprovoked killing. In addition, the Governor concluded Schulz had failed to obtain insight into her violent behavior and minimized her role in the crime. This in turn, undermined her expression of remorse. The Governor based these findings on the 2008 Board hearing, among other things. Surprisingly, the Governor makes no reference to the 2009 Board hearing or evidence presented, other than agreeing with the finding the commitment crime was committed in a brutal manner.
The Governor stated in his decision that he was concerned by Schulz's inability to control her behavior. He noted that in 2004, she was counseled (a 128A violation) for failing to report to a clinic. The Governor concluded this incident demonstrated Schulz was still unwilling or unable to follow rules. The Governor further stated that Schulz's lengthy history of prison misconduct indicated she was not ready to conform her conduct to the rules of society or obey parole conditions and thus her release would pose a risk to the community.
In summing up the reasons for reversing the Board's decision granting parole, the Governor stated: "The gravity of the crime is a factor supporting my decision, but I am particularly concerned by Schulz's inconsistent statements and by the evidence that she lacks insight into her crime. I am also troubled that she is still either unwilling or unable to conform her conduct to the rules. This evidence indicates that Schulz still poses a risk of recidivism and violence and that her release from prison at this time would create an unreasonable risk to public safety."
G. Petition for Writ of Habeas Corpus
On January 27, 2010, Schulz filed a petition for writ of habeas corpus in the superior court, challenging the Governor's reversal of the Board's decision granting Schulz parole. In June 2010, the Warden filed a return to the trial court's order on April 2, 2010, requiring the Warden to respond to Schulz's writ petition. On August 23, 2010, the trial court granted the petition for writ relief and ordered reinstatement of the Board's decision granting Schulz parole. The trial court noted in its written order of decision that, while in prison, Schulz had "minimal markers. None have been for serious incidents. She has had generally very good reports. Several state psychologists have independently deemed her to be a low risk to the community." The court noted it was "a statement of fact" that Schulz did not inflict the fatal "blows," although she "started the ball rolling." Nevertheless Schulz was "100 percent guilty," and admitted her guilt.
In assessing whether Schulz is a current threat to public safety, the trial court considered the seriousness of her crime and concluded that it was no worse than other crimes involving love triangles that result in death to one of the members of the triangle. The court noted that this type of crime is common and stabbing or shooting the victim is the most common means of killing such a victim. The court therefore concluded that, "as bad as was the murder in this case, it is not 'especially heinous or cruel'." Citing In re Masoner (2009) 179 Cal.App.4th 1531, the trial court further concluded that the Governor's decision was not supported by "some evidence" and therefore granted Schulz's petition, reversed the Governor's decision, and ordered the Board's decision granting parole reinstated.
On September 17, 2010, this court granted the Warden's request for a stay of enforcement of the trial court's order pending resolution of the instant appeal filed in January 2011.
In April 2010, during the pendency of Schulz's writ petition challenging the Governor's decision denying parole, the Board held another parole hearing and found Schulz unsuitable for parole on the grounds there was a nexus between the commitment offense and Schulz's inability to understand the causative factors that led to the offense, making Schulz an unreasonable risk. The Board concluded that Schulz needed to understand and articulate more clearly what caused her to murder the victim. The Board also found that Schulz's remorse was not sincere, Schulz did not state an adequate relapse prevention plan, and she made inconsistent statements about her past alcohol and drug abuse. The Board disagreed with the favorable psychological evaluation. The Board, however, also noted that, at the time of the April 2010 hearing, Schulz had remained disciplinary free, with no 115 violations since 1986 and no 128 violations since 2004. Evidence of the April 2010 parole hearing was not before the trial court when it ruled on Schulz's writ petition. This court granted judicial notice of the transcript of the April 2010 parole hearing, in connection with the Warden's petition for writ of supersedeas to stay enforcement of the trial court's order granting Schulz's petition for writ of habeas corpus relief.
III
LAW APPLICABLE TO GRANTING PAROLE
The Board found Schulz was suitable for parole. The Governor disagreed. The trial court concluded the Governor's decision rejecting parole was unsupported by any evidence. In determining whether there was error in the trial court granting Schulz writ relief, we review the record to determine whether some evidence supports the Governor's determination that Schulz remains a current threat to public safety under section 3041. (In re Shaputis (2008) 44 Cal.4th 1241, 1255 (Shaputis))
The Board "generally is authorized to grant parole and set release dates. (§§ 3040, 5075 et seq.) The Board's parole decisions are governed by section 3041 and title 15, section [2402] of the California Code of Regulations. . . . Pursuant to statute, the Board 'shall normally set a parole release date' one year prior to the inmate's minimum eligible parole release date, and shall set the date 'in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public . . . .' (§ 3041, subd. (a), italics added.) Subdivision (b) of section 3041 provides that a release date must be set 'unless [the Board] determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.' (Italics added; [citation], fn. omitted.)" (In re Lawrence (2008) 44 Cal.4th 1181, 1201-1202 (Lawrence); see also Shaputis, supra, 44 Cal.4th at p. 1256.)
Title 15, section 2402 of the California Code of Regulations (Regs. § 2402) sets forth the factors to be considered by the Board in determining a defendant's parole suitability. (Shaputis, supra, 44 Cal.4th at p. 1255.) This regulation is designed to guide the Board's assessment of whether the defendant is suitable for parole. (Regs. § 2402, subd. (a); Shaputis, supra, 44 Cal.4th at p. 1256.) Information considered by the Board in assessing suitability for parole includes: "the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability." (Regs. § 2402, subd. (b); Shaputis, supra, 44 Cal.4th at p. 1256, fn. 14.)
Circumstances listed in Regs. § 2402 as tending to show that a defendant poses an unreasonable risk of danger to society and thus is unsuitable for parole include: "(1) a commitment offense carried out in an 'especially heinous, atrocious or cruel manner'; (2) a '[p]revious [r]ecord of [v]iolence'; (3) 'a history of unstable or tumultuous relationships with others'; (4) '[s]adistic [s]exual [o]ffenses'; (5) 'a lengthy history of severe mental problems related to the offense'; and (6) '[t]he prisoner has engaged in serious misconduct in prison or jail.' (Regs. § 2402, subd. (c)(1)-(6).)" (Shaputis, supra, 44 Cal.4th at p. 1257, fn. 15.)
Circumstances tending to show parole suitability include: "(1) the absence of a juvenile record; (2) 'reasonably stable relationships with others'; (3) signs of remorse; (4) a crime committed 'as the result of significant stress in [the prisoner's] life'; (5) battered woman syndrome; (6) the lack of 'any significant history of violent crime'; (7) '[t]he prisoner's present age reduces the probability of recidivism'; (8) '[t]he prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release'; and (9) the inmate's '[i]nstitutional activities indicate an enhanced ability to function within the law upon release.' (Regs., § 2402, subd. (d)(1)-(9).)" (Shaputis, supra, 44 Cal.4th at p. 1257, fn. 16.)
Under Regs. § 2402, the above enumerated factors "are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel." (Regs. § 2402, subds. (c), (d).) Under section 3041, subdivision (b), "parole applicants in this state have an expectation that they will be granted parole unless the Board finds, in the exercise of its discretion, that they are unsuitable for parole in light of the circumstances specified by statute and by regulation." (In re Rosenkrantz (2002) 29 Cal.4th 616, 654 (Rosenkrantz); Shaputis, supra, 44 Cal.4th at p. 1258.)
The Governor is required to apply the same standards as those that apply to the Board. (Shaputis, supra, 44 Cal.4th at p. 1258.) The Governor's interpretation of a documentary record is entitled to deference. (Rosenkrantz, supra, 29 Cal.4th at p. 616; Shaputis, supra, 44 Cal.4th at p. 1258.) "Although 'the Governor's decision must be based upon the same factors that restrict the Board in rendering its parole decision' [citation], the Governor undertakes an independent, de novo review of the inmate's suitability for parole. [Citation.] Accordingly, the Governor has discretion to be 'more stringent or cautious' in determining whether a defendant poses an unreasonable risk to public safety. [Citation.] When a court reviews the record for some evidence supporting the Governor's conclusion that a petitioner currently poses an unreasonable risk to public safety, it will affirm the Governor's interpretation of the evidence so long as that interpretation is reasonable and reflects due consideration of all relevant statutory factors." (Shaputis, supra, 44 Cal.4th at p. 1258, italics added; see also Rosenkrantz, supra, 29 Cal.4th at pp. 656-658, 660-661.)
In determining whether there is "some evidence" supporting the Governor's decision, "'the relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense. This inquiry is, by necessity and by statutory mandate, an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate's psychological or mental attitude. [Citation.]'" (Shaputis, supra, 44 Cal.4th at pp. 1254-1255, quoting Lawrence, supra, 44 Cal.4th at p. 1221.)
IV
INSUFFICIENCY OF EVIDENCE SUPPORTING THE GOVERNOR'S DECISION
The Warden contends the Governor's decision denying Schulz parole is supported by some evidence in the record. Specifically, the Warden argues the Governor reasonably concluded Schulz was currently dangerous based on (1) the brutal circumstances of Schulz's commitment crime, (2) Schulz's extensive and recent history of institutional misconduct, and (3) Schulz's lack of adequate insight into the causative factors of her commitment crime and thus minimization of her responsibility for her crime.
A. The Brutality of Commitment Offense
Although Schulz's crime was a "senseless, brutal, unprovoked killing," this alone is not a sufficient basis for denying parole. As noted in Shaputis, the relevant inquiry for this court is not merely whether Schulz's crime "'was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the Board or the Governor.'" (Shaputis, supra, 44 Cal.4th at p. 1255, quoting Lawrence supra, 44 Cal.4th at p. 1221.)
As our high court explained in Lawrence, "Our deferential standard of review requires us to credit the Governor's findings if they are supported by a modicum of evidence. [Citation.] This does not mean, however, that evidence suggesting a commitment offense was 'especially heinous' or 'particularly egregious' will eternally provide adequate support for a decision that an inmate is unsuitable for parole. As set forth above, the Legislature specifically contemplated both that the Board 'shall normally' grant a parole date, and that the passage of time and the related changes in a prisoner's mental attitude and demeanor are probative of the determination of current dangerousness. When, as here, all of the information in a postconviction record supports the determination that the inmate is rehabilitated and no longer poses a danger to public safety, and the Governor has neither disputed the petitioner's rehabilitative gains nor, importantly, related the commitment offense to current circumstances or suggested that any further rehabilitation might change the ultimate decision that petitioner remains a danger, mere recitation of the circumstances of the commitment offense, absent articulation of a rational nexus between those facts and current dangerousness, fails to provide the required 'modicum of evidence' of unsuitability." (Lawrence, supra, 44 Cal.4th at pp. 1226-1227; italics added.)
While the crime Schulz committed is horrific, the circumstances of that crime alone are insufficient under Lawrence to support a finding of unsuitability for parole.
B. Lack of Insight and Minimization of Responsibility
The Warden argues there is evidence supporting the Governor's finding that Schulz lacked insight into the causative factors for her crime. The Warden asserts that the instant case is "virtually indistinguishable" from In re Taplett (2010) 188 Cal.App.4th 440 (Taplett), in which the court upheld the Governor's decision denying parole based on the defendant's minimization of responsibility for her crime. We disagree. Taplett is distinguishable from the instant case in that the Taplett defendant's most recent psychological evaluation indicated that the defendant continued to minimize her responsibility for her crime and denied she had any intent to kill the victim.
In Taplett, the defendant was convicted of second degree murder, as the driver in a drive-by shooting. (Taplett, supra, 188 Cal.App.4th at pp. 442-443.) The defendant claimed she did not know her companion was going to shoot the victim; she thought there might only be a fight. (Id. at pp. 449-450.) The Taplett court agreed with the Governor's conclusion that the defendant's rationalization of her acts reflected a lack of insight and failure to acknowledge responsibility for the crime. (Id. at p. 450.)
In the instant case, Schulz fully acknowledged she was responsible for the murder and for her actions leading to Mortz's death. Even though it was established factually that Fields committed the lethal stab wound to Mortz's neck, Schulz acknowledged that she was responsible for killing Mortz because she initiated the brutal attack and Mortz would not have died, had Schulz not stabbed her. Schulz also articulated various plausible reasons for her conduct and stated remorse for her actions. Schulz examined her past and other factors that led to stabbing Mortz, including the source of Schulz's underlying anger towards women arising from her abuse by her mother and grandmother; her desperate, irrational clinging and co-dependence on Fields; Fields's betrayal of Schulz; Schulz's anger toward Fields and desire to punish him by stabbing the woman with whom he had just had sex; Schulz's low self-esteem; and being under the influence of alcohol.
During Schulz's most recent psychological interview and during the parole board hearing in April 2009, Schulz showed a great deal of genuine insight into the causative factors for her crime. The Warden argues that Schulz's discussion of various reasons why she acted the way she did constituted diminishment of her criminal actions and showed a lack of insight into the causative factors for the crime. But looking at the record as a whole, including the entire transcript of the 2009 parole hearing, there is no evidence of lack of insight. To the contrary, Schulz clearly states she was responsible for killing Mortz and explains why she committed her criminal acts. The initial probation report indicates that she accepted her responsibility for the crime from the very inception of her incarceration. The record further shows that, during her lengthy incarceration, she gained greater insight into why she committed her crime. Schulz articulated during the 2009 parole hearing, an in-depth understanding of how and why she violently attacked Mortz. There appears to be little more she could have added to show insight into the causative factors leading to her offense.
In the recent, procedurally identical case, In re Ryner (2011) 196 Cal.App.4th 533, 551 (Ryner), the court concluded there was no evidence supporting the Governor's decision denying parole, and affirmed the trial court order granting the defendant's petition for writ of habeas corpus. In Ryner, the defendant was convicted of murder and two assaults. After an altercation in a bar with a fellow patron, the bar bouncer removed the intoxicated defendant from the bar. The defendant fired his gun through the doorway, randomly shooting three people inside the bar. One of the victims died. A couple of weeks later, in a separate incident, the defendant stabbed two men because one of the men had made negative comments about the defendant's mother. The defendant had a history of violent behavior and substance abuse. (Id. at p. 539.)
After the defendant in Ryner had served 23 years in prison, the Board granted the defendant parole. The Governor reversed the Board's decision based on (1) the heinous nature of the defendant's crime, (2) the defendant's lack of insight, and (3) the defendant's inadequate participation in self-help, therapy, and anger management courses. (In re Ryner, supra, 196 Cal.App.4th at p. 550.) Rejecting the Governor's decision, the trial court granted the defendant's petition for habeas relief. The Court of Appeal affirmed the trial court decision in Ryner, reinstating the Board's decision granting parole. (Id. at p. 553.)
Relying on Lawrence, supra, 44 Cal.4th 1181, the court in Ryner concluded that the first factor relied upon by the Governor was insufficient alone to support the Governor's decision. The Ryner court explained that the Governor may deny parole based upon the circumstances of the crime or the defendant's criminal history but only if there is some evidence that the defendant "continues to pose an unreasonable risk to public safety." (In re Ryner, supra, 196 Cal.App.4th at p. 545.) The Ryner court further noted that, "[A]fter an inmate has served a suggested base term, the circumstances of the commitment offense alone will rarely provide a valid basis for denying parole in the presence of strong evidence of rehabilitation and no other evidence of current dangerousness.[]" (Id. at p. 546, citing Lawrence, supra, 44 Cal.4th at p. 1211.) In Ryner, the court concluded that the egregiousness of the defendant's crimes and his criminal history were insufficient grounds upon which to deny parole. (In re Ryner, at p. 546.)
As to the second factor relied upon by the governor, lack of insight, the Ryner court concluded there was no evidence to support a finding of lack of insight. The court noted that "[n]either Penal Code section 3041, nor the governing regulations list 'lack of insight' as an unsuitability factor. However, in Shaputis, supra, 44 Cal.4th 1241, the companion case to Lawrence (see Lawrence, supra, 44 Cal.4th at p. 1191, fn. 2), the court upheld the denial of parole because the inmate's lack of insight into his offense and its causes together with the aggravated nature of the offense supported a finding that he was currently dangerous and therefore unsuitable for parole. (Shaputis, supra, 44 Cal.4th at pp. 1258-1261 & fn. 20.)" (In re Ryner, supra, 196 Cal.App.4th at pp. 546-547.)
The Ryner court explained that "a 'lack of insight' into past criminal conduct can reflect an inability to recognize the circumstances that led to the commitment crime; and such an inability can imply that the inmate remains vulnerable to those circumstances and, if confronted by them again, would likely react in a similar way. [Citations.] Thus, an inmate's 'lack of insight' can provide a logical nexus between the gravity of a commitment offense and a finding of current dangerousness." (In re Ryner, supra, 196 Cal.App.4th at p. 547.) But the Ryner court concluded, "this case is not Shaputis, supra, 44 Cal.4th at pages 1251-1252, where the defendant had a '"schizoid quality to interpersonal relationships"'; Ryner has no such history. Furthermore, Shaputis's lack of insight into his crime was rationally indicative of current dangerousness because it showed that he had not accepted full responsibility for his crime." (In re Ryner, at p. 547.) In Shaputis, the defendant insisted the shooting was an accident and denied his lengthy history of violent and brutal behavior toward his victims, leading to the murder offense. As in the instant case, in Ryner, defendant admitted committing the crime and accepted full responsibility for it.
The court in Ryner noted that the Governor concluded the defendant "lacks sufficient insight" into his crime, and generally this does not constitute a valid basis for denying parole: "Perhaps the Governor was concerned that Ryner lacks sufficient insight into the life crime. Of course, personal insight has long been recognized as a worthy goal. However, we have to question whether anyone can ever fully comprehend the myriad circumstances, feelings, and current and historical forces that motivate conduct, let alone past misconduct. Additionally, we question whether anyone can ever adequately articulate the complexity and consequences of past misconduct and atone for it to the satisfaction of everyone. Indeed, the California Supreme Court has recognized that 'expressions of insight and remorse will vary from prisoner to prisoner and . . . there is no special formula for a prisoner to articulate in order to communicate that he or she has gained insight into, and formed a commitment to ending, a previous pattern of violent behavior.' (Shaputis, supra, 44 Cal.4th at p. 1260, fn. 18.) More importantly, in our view, one always remains vulnerable to a charge that he or she lacks sufficient insight into some aspect of past misconduct even after meaningful self-reflection and expressions of remorse. Moreover, we consider the very concept of 'insight' to be inherently vague and find that whether a person has or lacks insight is often in the eye of the beholder. Hence, although a 'lack of insight' may describe some failure to acknowledge and accept an undeniable fact about one's conduct, it can also be shorthand for subjective perceptions based on intuition or undefined criteria that are impossible to refute. [Citation.] However, it is settled that the Board may not base its findings on hunches, speculation, or intuition." (In re Ryner, supra, 196 Cal.App.4th at p. 548, citing Lawrence, supra, 44 Cal.4th at p. 1213 and Rosenkrantz, supra, 29 Cal.4th at p. 677.)
As explained in Ryner, "Evidence of lack of insight is indicative of a current dangerousness only if it shows a material deficiency in an inmate's understanding and acceptance of responsibility for the crime.[] To put it another way, the finding that an inmate lacks insight must be based on a factually identifiable deficiency in perception and understanding, a deficiency that involves an aspect of the criminal conduct or its causes that are significant, and the deficiency by itself or together with the commitment offense has some rational tendency to show that the inmate currently poses an unreasonable risk of danger." (In re Ryner, supra, 196 Cal.App.4th at pp. 548-549.)
The court in Ryner concluded that there was no evidence to support the Governor's denial of parole based on a lack of insight because, "undisputed evidence shows that the inmate has acknowledged the material aspects of his or her conduct and offense, shown an understanding of its causes, and demonstrated remorse . . ." (In re Ryner, supra, 196 Cal.App.4th at p. 549.) Therefore, "the Governor's mere refusal to accept such evidence is not itself a rational or sufficient basis upon which to conclude that the inmate lacks insight, let alone that he or she remains currently dangerous." (Ibid.)
Likewise, here, the psychiatrists who most recently evaluated Schulz, and the parole Board in 2008 and 2009, as well as the trial court, all concluded Schulz was suitable for parole based on their findings that Schulz had sufficient insight into why she committed her crime and was truly remorseful. Schulz's testimony at the parole hearing supported these findings. Schulz stated various insightful causative factors for her crime and acknowledged she was responsible for killing Mortz because she started in motion the events that led to Mortz's death. Schulz conceded she should not have gone to Edom Hill with Fields and she should not have stabbed Mortz. She recognized her acts led to Mortz's death and she was therefore responsible for Mortz's death. Schulz said she was sorry for what she had done and sorry that Mortz's family, including Mortz's daughter, suffered the loss of Mortz.
Based on the record, we conclude there is no evidence to support the Governor's denial of parole based on a lack of insight because, "undisputed evidence shows that the inmate has acknowledged the material aspects of . . . her conduct and offense, shown an understanding of its causes, and demonstrated remorse, . . ." (In re Ryner, supra, 196 Cal.App.4th at p. 549.) Therefore, the Governor's denial of parole based on a lack of insight "is not itself a rational or sufficient basis upon which to conclude that [Schulz] lacks insight, let alone that . . . she remains currently dangerous." (Ibid.)
C. History of Institutional Transgressions
The record does not support the Governor's conclusion that Schulz's history of institutional transgressions shows that Schulz is currently dangerous. To the contrary, the evidence in the record shows that Schulz rehabilitated in this regard. Although, initially, Schulz resisted complying with prison rules by committing a serious 115 violation in 1986 and numerous 128A violations, Schulz has not committed any 115 violations after the 1986 offense and has not committed any 128A violations since 1994, other than one violation in 2004. The 1986 violation was for "Delaying Institutional Count," and Schulz's last 128A violation in 2004, was for "not reporting to priority ducat for consult clinic." The majority of Schulz's fifty-four 128 violations were issued between 1986 and 1989 (45 total) for failing to report to her assignments or reporting late. Between 1994 and 2010, she was not cited for any 115 or 128A violations, suggesting Schulz has favorably adjusted to prison and has been willing and able to follow prison rules.
The Warden argues that Schulz's extensive history of misconduct supports the Governor's decision to deny Schulz parole because it demonstrates Schulz's pattern of inflexibility. The Warden notes that Dr. Robinson, the psychologist who evaluated Schulz for the March 2008 report, stated that one of Schulz's former work supervisors in Forestry stated that "Schulz was often reluctant to change procedures when instructed to do so and preferred to continue with her former way of conducting business," and that her typical response to corrective instruction "was to be resistive to change and insist that 'her way was the right way.'" The Warden omitted Dr. Robinson's additional comments that Schulz's supervisor further stated that Schulz would eventually acquiesce, although it sometimes took several promptings and his insistence that she comply. The supervisor stated that, even though Schulz was sometimes reluctant to change, she was never overtly disrespectful.
Dr. Robinson noted that Schulz's tendency to be inflexible was apparent during Schulz's interview but "It was a positive prognostic indicator that Ms. Schulz could eventually concede the middle ground. . . . At times, it is appropriate to stand firm on one's viewpoint. She is more than able to do this, which confirmed that she no longer displays features of a dependent personality disorder." Dr. Robinson concluded Schulz presented a "low" risk of recidivism and violent reoffense if released to the community. Even taking into consideration Dr. Robinson's comments regarding Schulz's proclivity to be inflexible on occasion, when considered within the context of the totality of Dr. Robinson's evaluation of Schulz, there is no evidence that Schulz is currently unable or unwilling to conform her behavior to the rules of society such that she would be a danger to society.
V
HABEAS CORPUS RELIEF
Upon granting Schulz's petition for writ of habeas corpus, the trial court ordered the Governor's decision vacated and ordered the Board's decision granting parole reinstated. The Warden argues that the trial court erred in ordering the Board's decision reinstated. Rather, the trial court should have ordered the case remanded back to the Governor for further consideration in accordance with due process. We disagree.
The trial court's order reinstating the Board's decision was proper. When the Governor violates an inmate's right to due process by reversing a parole suitability finding without some evidentiary support, the appropriate remedy is to vacate the Governor's decision and reinstate the Board's finding of suitability and granting parole. (Lawrence, supra, 44 Cal.4th at pp. 1181, 1190, 1290, In re Dannenberg (2009) 173 Cal.App.4th 237, 256, In re Burdan (2008) 169 Cal.App.4th 18, 39, In re Ryner, supra, 196 Cal.App.4th at p. 553.)
Remanding the matter to the Governor for reconsideration would constitute an idle act and render the writ of habeas corpus essentially meaningless by allowing the Governor to indefinitely retain the inmate while repeatedly reconsidering the inmate's release. (Masoner, supra, 179 Cal.App.4th at p. 1540; In re Aguilar (2008) 168 Cal.App.4th 1479, 1491.) "[W]here, as here, it is determined there is not 'some evidence' in the record to support the Governor's decision to overrule the Board's grant of parole, the proper remedy is to vacate the Governor's decision and to reinstate that of the Board." (In re Burdan, supra, 169 Cal.App.4th at p. 39; see also In re Copley (2011) 196 Cal.App.4th 427, 435.)
VI
DISPOSITION
The superior court's ruling granting Schulz's petition for writ of habeas corpus is affirmed. The Governor's decision reversing the Board's April 2009 decision granting parole is vacated and the Board's parole release order is reinstated. Our finding that the trial court issued a proper remedy by vacating the Governor's decision and reinstating the Board's 2009 decision finding Schulz suitable for parole also vacates the Board's 2010 decision because the Board had no authority to conduct that hearing. (In re Copley, supra, 196 Cal.App.4th at p. 435.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Codrington
J.
We concur:
King
Acting P.J.
Miller
J.